Lovell et al v. Miller

Filing 118

ORDER Granting 114 Judgment as a Matter of Law. The Court GRANTS Dr. Miller judgment as a matter of law on all of Plaintiffs' claims and directs the clerk to enter judgment accordingly, by Judge David M. Ebel on 9/12/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 10-CV-00992-DME-CBS
JAMES ALLEN LOVELL and MONICA K. LOVELL,
Plaintiffs,
v.
DAVID W. MILLER, M.D.,
Defendant.
ORDER GRANTING JUDGMENT AS A MATTER OF LAW
This matter came before the Court on Defendant David Miller’s mid-trial motion
for judgment as a matter of law (Doc. 114), see Fed. R. Civ. P. 50(a). The Court
granted that motion from the bench, and now explains in greater detail why.
I. PLAINTIFFS’ CLAIMS
Plaintiffs James and Monica Lovell alleged the following: Defendant Miller, a
neurosurgeon, performed surgery on James Lovell’s back, removing herniated lumbar
disc material at the L4-L5 level. During or immediately after surgery, Mr. Lovell’s L5
nerve root was injured, resulting in a condition referred to as “foot drop.” That condition
presented immediately after surgery and is now thought to be permanent. In this action,
James Lovell seeks to recover damages, claiming the foot drop was caused by Dr.
Miller’s negligence. And Monica Lovell seeks to recover from Dr. Miller for her loss of
Mr. Lovell’s affection, society, companionship, and comfort due to his injury.

II. STANDARD FOR RULE 50(a) MOTION FOR JUDGMENT AS A MATTER OF LAW
In a diversity case such as this one, federal law governs “the ultimate, procedural
question [of] whether judgment as a matter of law is appropriate.” Specialty Beverages,
L.L.C. v. Pabst Brewing Co., 537 F.3d 1165, 1175 (10th Cir. 2008) (internal quotation
marks omitted). Rule 50(a)(1), Fed. R. Civ. P., addresses judgments as a matter of law
and provides the following:
If a party has been fully heard on an issue during a jury trial and the court
finds that a reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against
the party on a claim or defense that, under the controlling
law, can be maintained or defeated only with a favorable
finding on that issue.
A party can make a Rule 50(a)(1) motion any time before the case is submitted to the
jury. See Fed. R. Civ. P. 50(a)(2).
Judgment as a matter of law is appropriate under Rule 50 “only if the evidence so
overwhelmingly favors the moving party as to permit no other rational conclusion. In
other words, the question is not whether there is literally no evidence supporting the
nonmoving party, but whether there is evidence upon which the jury could properly find
for that party.” Specialty Beverages, 537 F.3d at 1175 (internal quotation marks,
citations, alterations omitted). In addressing this question, the Court does not weigh
evidence or make credibility determinations, and will draw all reasonable inferences in
favor of the non-moving party, here the Lovells. See id.

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III. DR. MILLER IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON
PLAINTIFF JAMES LOVELL’S NEGLIGENCE CLAIM
The parties agree that Colorado law governs Plaintiffs’ substantive claims. To
recover under Colorado law for negligence in a medical malpractice case, Mr. Lovell
had to prove, by a preponderance of the evidence, that Dr. Miller owed him a legal duty
of care, Dr. Miller breached that duty, and Dr. Miller’s breach of the duty of care caused
Mr. Lovell injury. See Day v. Johnson, 255 P.3d 1064, 1068-69, 1072 & n.7 (Colo.
2011).
“The standard of care in a medical malpractice action is measured by whether a
reasonably careful physician of the same school of medicine as the defendant would
have acted in the same manner as did the defendant in treating and caring for the
plaintiff.” Melville v. Southward, 791 P.2d 383, 387 (Colo. 1990). “Unless the subject
matter of a medical malpractice action lies within the ambit of common knowledge or
experience of ordinary persons,” which is not the case here, “the plaintiff must establish
the controlling standard, as well as the defendant’s failure to adhere to that standard, by
expert opinion testimony.” Id.

Id.

The reason for the requirement of expert opinion testimony in most
medical malpractice cases is obvious: matters relating to medical
diagnosis and treatment ordinarily involve a level of technical knowledge
and skill beyond the realm of lay knowledge and experience. Without
expert opinion testimony in such cases, the trier of fact would be left with
no standard at all against which to evaluate the defendant’s conduct.
Plaintiffs listed two neurosurgeons as witnesses and called both to testify. The

first was Plaintiffs’ expert witness, Henry Fieger, M.D., a neurosurgeon qualified to

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testify regarding the surgical removal of herniated disc material. 1 The second
neurosurgeon to testify was the defendant, Dr. Miller.
A. Plaintiffs failed to present sufficient evidence from which a reasonable
jury could find that Dr. Miller breached any standard of care during surgery
Dr. Miller, during his testimony, did not concede to breaching any duty of care
owed to Mr. Lovell. And Dr. Fieger testified that he did not know “what caused Mr.
Lovell’s nerve root injury,” nor did he know whether the injury “was due to some surgical
impropriety or mistake.” (Trial tr., Day 2, 14:44:58 to 14:45:18; see also id. at 15:07:20
to 15:07:42.) Moreover, Dr. Fieger stated at trial that he was not “express[ing] any
opinion about . . . what [he thought] went wrong in the surgery.” (Id. at 14:34:48 to
13:34:56.) It was Dr. Fieger’s assumption, instead, that sometime after the surgery and
by the time Mr. Lovell reached the recovery room, “something happened.” (Id. at
13:35:36 to 13:36:42.) Moreover, Dr. Fieger agreed that injury to the nerve root could
occur during this type of surgery even without any negligence. Based on this evidence,
a reasonable jury could not find that Dr. Miller was negligent in the manner in which he
performed the surgery.
B. There was insufficient evidence from which a reasonable jury could find
that any post-operative standard of care Dr. Miller breached caused Mr.
Lovell’s injuries
Dr. Fieger testified that Dr. Miller breached the relevant standard of care
immediately after surgery, when the foot drop was discovered, because Dr. Miller did
not take Mr. Lovell back into surgery immediately in order to “make sure that there was

The Court qualified Dr. Fieger as an expert in performing discectomies generally, but
not as an expert in the surgical approach that Dr. Miller took in this case to gain access
to the herniated disc, because Dr. Fieger had never performed a discectomy using that
approach, nor had he been trained as to that approach.

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not a correctable reason for this foot drop.” (Id. 13:48:48.) But Dr. Fieger further
testified that he did not know what had caused the foot drop, and that there was no
evidence suggesting that, even if Dr. Miller had taken Mr. Lovell back into surgery, Dr.
Miller would have found something that he could have corrected to minimize Mr. Lovell’s
nerve injury. Thus, Dr. Fieger could not “say with reasonable medical probability that
reoperating would have disclosed a correctable problem which would have reversed the
neurological deficit and the subsequent impairment.” (Id. at 14:46:52 to 14:47:12.)
Dr. Fieger testified that, alternatively, Dr. Miller breached the relevant standard of
post-operative care by not at least obtaining “an imaging study, such as a CAT scan or
MRI, in an attempt to see if there was some structural problem causing this weakness”
in Mr. Lovell’s foot. (Id. at 13:49:42 to 13: 49: 54.) But Dr. Fieger again went on to
testify that he “ha[d] no idea” what Dr. Miller would have accomplished had he obtained
an imaging study immediately after the surgery. (Id. at 13:51:18 to 13:51:40.)
Based on this evidence, a reasonable jury could not find that Dr. Miller’s breach
of the standard of post-operative care caused Mr. Lovell’s foot drop. “To prove
causation in a [medical malpractice] negligence case, the plaintiff must show by a
preponderance of the evidence that the injury would not have occurred but for the
defendant’s negligent conduct.” Kaiser Found. Health Plan of Colo. v. Sharp, 741 P.2d
714, 719 (Colo. 1987). Ordinarily “[t]he existence of a causative link between the
plaintiff’s injuries and the defendant’s negligence is a question of fact, and it is within the
province of the fact-finder to determine the relationship between the defendant’s
negligence and the plaintiff’s condition.” Id. (citations omitted). But that is the case only
if “the evidence establishes such facts and circumstances as would indicate a

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reasonable probability that causation exists.” Id. (internal quotation marks omitted). “To
create a triable issue of fact regarding causation in a medical malpractice case, the
plaintiff need not prove with absolute certainty that the defendant’s conduct caused the
plaintiff’s harm, or establish that the defendant’s negligence was the only cause of the
injury suffered. However, the plaintiff must establish causation beyond mere possibility
or speculation.” Id. (citation omitted). The Lovells failed to do that in this case. See
Conrad v. Imatani, 724 P.2d 89, 92-93 (Colo. Ct. App. 1986) (granting defendant
summary judgment on medical malpractice negligence claim because plaintiff failed to
present any expert testimony that her pain was caused by defendant’s negligence);
Smith v. Curran, 472 P.2d 769, 770-71 (Colo. Ct. App. 1070) (upholding directed verdict
for defendant in medical malpractice case where plaintiff failed to present any expert
testimony on issue of the cause or source of a post-operative infection, because those
“are matters within the field of medical experts”); see also Williams v. Boyle, 72 P.3d
392, 397-98 (Colo. Ct. App. 2003) (concluding expert testimony was necessary to
establish that prescribed medication caused plaintiff’s kidney damage, because
“relationship between the kidney damage and the prescribed medication is not so clear
that a lay person would be able to conclude that the medication caused the damage
without expert testimony”).
Dr. Fieger also testified that Dr. Miller breached the standard of care by failing to
note, in his post-operative report, that he observed during the surgery that Mr. Lovell’s
L5 nerve root was compressed, swollen and very attenuated. But Dr. Fieger conceded
that this breach of the relevant standard of care did not result in any consequence to Mr.
Lovell.

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For these reasons, then, a reasonable jury could not find for Mr. Lovell on his
negligence claim and Dr. Miller is, therefore, entitled to judgment as a matter of law on
that claim.
IV. DR. MILLER IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ON
PLAINTIFF MONICA LOVELL’S CLAIM FOR LOSS OF CONSORTIUM
Because “[a] loss of consortium claim is derivative of the underlying injury claim,”
Schwindt v. Hershey Foods Corp., 81 P.3d 1144, 1148 (Colo. Ct. App. 2003) (citing Lee
v. Colo. Dep’t of Health, 718 P.2d 221 (Colo. 1986)), and because the Court has
concluded that Plaintiffs failed to present sufficient evidence from which a reasonable
jury could find that Dr. Miller’s negligence caused Mr. Lovell’s foot drop, Dr. Miller is also
entitled to judgment as a matter of law on Plaintiff Monica Lovell’s claim for the loss of
Mr. Lovell’s affection, society, companionship, and comfort resulting due to his injury.
CONCLUSION
For the foregoing reasons, the Court GRANTS Dr. Miller judgment as a matter of
law on all of Plaintiffs’ claims and directs the clerk to enter judgment accordingly.
Dated this 12th day of September, 2012.

BY THE COURT:
s/ David M. Ebel
__________________________________
UNITED STATES DISTRICT COURT

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